I am pleased to announce that the Executive Board of the Section of Comparative Law in the Association of American Law Schools has accepted my recommendation--in my capacity as the elected Chair of the Section--to create an annual award named after Mark Tushnet, the William Nelson Cromwell Professor of Law at Harvard University.
I was privileged to be Mark's student many years ago at Harvard Law School. I saw then as I see now how closely he reads the work of others, how intensely engaged he is in the field of public law, and how much of himself he invests in his students.
More details on the award are available here.
Today I begin my term as Chair of the Comparative Law Section in the Association of American Law Schools. As Chair, I will lead a group of 800 members in advancing and deepening our learning in the field.
The task of the Chair is to plan and execute the program for our annual meeting, to be held next year on January 2-5, 2020, in Washington, D.C. Later this month, I will consult with our Executive Committee about possible themes for our program.
But I will do more than this during my term as Chair. I will create an annual prize to be awarded to a younger scholar in recognition of excellence in comparative law scholarship. I intend also to host a works-in-progress conference here at the University of Texas at Austin to give scholars in comparative law an opportunity to brainstorm and improve their ongoing research and writing.
I welcome suggestions for other productive initiatives we can take during my term as Chair.
I am writing from Vancouver, British Columbia, where I am participating in a symposium to recognize the judicial career of Beverley McLachlin, recently retired as Chief Justice of Canada, a position she held from 2000 until the end of 2017.
Chief Justice McLachlin hired me to serve as her law clerk when I graduated from Yale Law School. It was a privilege unlike any other to return home to Ottawa to work with her.
This weekend's symposium at the University of British Columbia offered me the opportunity to reflect on her legacy as Chief Justice. I wrote a paper entitled "The Expositor and Guardian of Our Constitutional Values," which has been published in a special collection of essays recognizing the Chief's immense contributions to Canada. The paper is available here.
Earlier this year, I organized a modest fundraiser to sponsor the education of one Haitian child in need of our help. I asked friends to give $10 each. By the time the fundraiser had ended, we had raised much more money than I had expected--enough to send not one, but six kids in Haiti to school, each for three years!
Together we have literally transformed the lives of these six children. They are now enrolled in school, learning to read, to count and to write, all the while delighting in the pleasure of paints, puzzles and instruments. You can see them pictured below. From left to right in the top row: Islande, 9 years old, 4th grade; Mildred, 9, 4th grade; Ludmia, 9, 4th grade. From left to right, bottom row: Clifford, 8, 3rd grade; Taicha, 9, 4th grade; Julia, 11, 4th grade.
Thank you to all who contributed to this effort. I thank also the Marco Depestre Foundation of Ottawa for helping us to identify families in need of our care.
It is truly remarkable what we can do together.
I have no illusions about my importance in the field of public law. I am a (relatively!) young person of colo(u)r in a field that has long been and remains today dominated by people who do not look like me.
But thanks to the good fortune of caring mentors and extraordinary opportunities, I now occupy a gatekeeper role in a few areas in the field. Given my own background, it is clear to me that one of my duties as a gatekeeper in the small universe where I exercise some influence is to help persons from historically underrepresented groups through the gate. Helping includes advising, encouraging, and promoting persons from these groups.
Here are some of the places where I have helped and will continue to help in public law:
1. As co-editor of the new Oxford Series in Comparative Constitutionalism and the Routledge Series in Comparative Constitutional Change, I advise scholars about how to package and develop their ideas. I also help as a member of the board of the ASCL Studies in Comparative Law series at Cambridge. Please contact me if you have ideas for books.
2. As book reviews editor at the American Journal of Comparative Law, I highlight outstanding books that have not received much attention, whether because their authors are not well-known or because they are not particularly adept at or interested in self-promotion. Please contact me if you have a book that we should consider for review, or if you would like to review a book you think is worth highlighting for the field.
3. As co-editor at I-CONnect, I give a platform to scholars to explore interesting ideas, advance novel arguments, review books, and bring attention to views that may be unconventional or not yet widely disseminated. Please contact me if you would like to join the conversation at I-CONnect.
I hope other gatekeepers in the field of public law will join me in helping persons from historically underrepresented groups through the gate.
I spent part of the past week in Taipei at an international conference marking the 70th anniversary of the Constitutional Court of Taiwan. The conference opened with remarks from the President of the Republic, followed by a keynote address by the retired Chief Justice of Canada, Beverley McLachlin, for whom I served as a law clerk many years ago. The program was held over two days and featured a few lectures on subjects of importance to Court's history and future. I delivered a lecture on the Court's case law on constitutional amendments; it was entitled "The Judicial Role in Constitutional Amendment and Dismemberment." I leave Taiwan with gratitude to my hosts for a wonderful event full of learning and enjoyment--and delicious food!
I'm pleased to share the cover for our new book on "Constitutional Change and Transformation in Latin America," to be published next year. It is a much needed inquiry into a region under serious stress. The book features contributions from 15 scholars and a Foreword by Justice Luis Roberto Barroso of the Supreme Federal Court of Brazil.
I spent last week in Aegina, a Greek island about 40 minutes southwest of Athens. I traveled to this part of the world to participate in a workshop on comparative constitutional change. I presented a draft of my chapter on Formal Amendment Rules: Functions and Design, to be published in the forthcoming Research Handbook on Comparative Constitutional Change. In the chapter, I explain the functions of formal amendment rules, critique existing classifications of formal amendment rules, and suggest the beginnings of a more comprehensive account of their structure. My purposes in the chapter are to map the scholarly understanding of formal amendment rules and to generate an agenda for further research into this severely understudied subject in constitutional design.
I am pleased to announce the publication, just today, of our new book on "An Unamendable Constitution? Unamendability in Constitutional Democracies," featuring cutting-edge contributions on the subject of constitutional unamendability from comparative, doctrinal, empirical, historical, political and theoretical perspectives. More information is available here. The full table of contents follows below.
An Unamendable Constitution? Unamendability in Constitutional Democracies (2018)
Modern constitutionalism has given rise to a paradox: can a constitutional amendment be unconstitutional? Today, it is undeniable that the answer is yes. In many parts of the world, an amendment can be invalidated for violating either a codified or uncodified constitutional norm. This phenomenon of an unconstitutional constitutional amendment traces its political foundations to France and the United States, its doctrinal origins to Germany, and it has migrated in some form to all corners of the world. We can trace this paradox to the concept of constitutional unamendability. Whether or not it is enforced, unamendability raises fundamental questions implicating sovereignty, legitimacy, democracy and the rule of law.
Chapter 1. The Forms of Unamendability
Richard Albert & Bertil Oder
Part I: The Legitimacy and Limits of Unamendability
Chapter 2. Necrocracy or Democracy? Assessing Objections to Constitutional Unamendability
Chapter 3. A Constitution for Eternity: An Economic Theory of Explicit Unamendability
Chapter 4. Conventions of Unamendability: Covert Constitutional Unamendability in (Two) Politically Enforced Constitutions
Jerfi Uzman & Gert Jan Geertjes
Chapter 5. Credible Commitment or Paternalism? The Case of Unamendability
Stephan Michel & Ignacio Cofone
Part II: Unamendability around the World
Chapter 6. Constitutional Falsehoods: The Fourth Judges Case and the Basic Structure Doctrine in India
Chapter 7. Unamendability in Israel: A Critical Perspective
Chapter 8. Eternal Provisions in the Bangladeshi Constitution: A "Constitution Once and For All"?
Chapter 9. Unamendability as a judicial discovery? Inductive learning lessons from Hungary
Chapter 10. Amending the Unamendable: The Case of Article 20 of the German Basic Law
Chapter 11. Debating Unamendability: Deadlock in Turkey's Constitution-Making Process
Chapter 12. The Unamendability of Amendable Clauses: The Case of the Turkish Constitution
Chapter 13. Brazil in the Context of the Debate Over Unamendability in Latin America
Juliano Zaiden Benvindo
Chapter 14. Unamendable Constitutional Provisions and the European Common Constitutional Heritage: A Comparison Among Three Waves of Constitutionalism.
Conference on "The Future of Liberal Democracy" at The University of Texas at Austin, February 21-23, 2019
Liberal democracy is under attack in many countries across the globe. It is under stress in several others. And in those countries where liberal democracy remains strong, political actors are bracing for what may come. On February 21-23, 2019, my faculty colleague Sandy Levinson and I will convene a major international conference on The Future of Liberal Democracy here at The University of Texas at Austin. Our program will gather 30 outstanding scholars from around the world to diagnose what ails liberal democracy and also to debate what can be done to save it. Panelists will examine the erosion of constraints executive power, the growing practice of constitutional replacement by constitutional amendment, as well as legal and political strategies for managing difference and diversity. In addition, panelists will discuss two provocative questions: (1) Is the Trump phenomenon an instance of American exceptionalism or is it part of larger global trend?; and (2) Is illiberal constitutionalism an oxymoron? All are welcome to attend this important program. The draft schedule follows below. For information on suggested travel and accommodation, please contact my colleague Trish Do by email at tdo[at]law.utexas.edu.
The Future of Liberal Democracy
The University of Texas at Austin
School of Law
February 21-23, 2019
William Stamps Farish Professor of Law, The University of Texas at Austin
W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law; Professor of Government, The University of Texas at Austin
Thursday, February 21
Ward Farnsworth (Texas)
Richard Albert (Texas)
Opening Keynote Conversation
Jack Balkin (Yale) and Sandy Levinson (Texas)
In conversation with Michelle Goldberg (New York Times)
Friday, February 22
Session I: Illiberal Constitutionalism: An Oxymoron?
Jan-Werner Müller (Princeton)
Vlad Perju (BC)
Wojciech Sadurski (Sydney)
Kim-Lane Scheppele (Princeton)
Session II: The Erosion of Constraints on Executive Power
Asli Bâli (UCLA)
Mark Graber (Maryland)
Russell Miller (Washington & Lee)
Miguel Schor (Drake)
Session III: Managing Difference and Diversity
Vicki Jackson (Harvard)
Ayelet Shachar (Max Planck/Toronto)
Kristen Stilt (Harvard)
Sujit Choudhry (WZB Berlin)
Session IV: Constitutional Identity, a panel in honor of Gary Jacobsohn
Ran Hirschl (Toronto)
Heinz Klug (Wisconsin)
Hanna Lerner (Tel Aviv)
Monika Polzin (Augsburg)
With comments by Gary Jacobsohn (Texas)
Saturday, February 23
Session V: The Trump Phenomenon: American Exceptionalism or a Global Trend?
Samuel Issacharoff (NYU)
Scot Peterson (Oxford)
Mark Tushnet (Harvard)
Mila Versteeg (Virginia)
Session VI: Constitutional Replacement by Constitutional Amendment
Chair: Richard Albert (Texas)
Carlos Bernal (Constitutional Court of Colombia)
John Dinan (Wake Forest)
Rosalind Dixon (UNSW)
Sanford Levinson (Texas)